policy

Ross Mounce, a postdoc at the University of Bath, recently wrote about how Elsevier charged him $31.50 for an “open access” research article licensed under a Creative Commons Attribution-NonCommercial-NoDerivs (BY-NC-ND) license. Mounce was understandably upset, because the article was originally published by another publisher – John Wiley – and was made available freely on their website. Elsevier’s act of charging for access initially appeared improper because of Wiley’s use of a noncommercial license.

This situation has sparked a debate among supporters of Open Access about whether or not Elsevier violated the terms of the BY-NC-ND license, and whether articles that are intended to be distributed freely can end up locked behind paywalls. This isn’t the first time this has happened; Peter Murray-Rust documented another instance of it last year. This kind of situation can leave researchers questioning why they should invest in ensuring that their research is distributed for free if another publisher can simply turn around and sell it – especially if the article carries a Creative Commons license that is supposed to restrict commercial use. Mounce complained to Elsevier about the arrangement, and as of March 9, they’ve removed the pay from the article and promised Mounce a refund. A representative from Elsevier claimed “there was some missing metadata for some of the OA articles,” thus apparently allowing for users to be charged for access to those openly licensed articles. Elsevier said it will investigate and reimburse others who purchased access to those articles on the Elsevier site during the time that the paywall was up. At the same time, Elsevier has hinted that it has the right to sell access to BY-NC-ND articles it holds because of a separate license they get from the author.

So, what is really going on here?

A fundamental feature of copyright law is that authors hold the copyright in any work they create. Authors have control over the permissions they grant beyond “all rights reserved” copyright. For example, an author could grant certain permissions by offering the work under a Creative Commons license (some rights reserved), or even place the work in the public domain (no rights reserved) using the CC0 Public Domain Dedication. And since the CC licenses are non-exclusive, an author can both share a work with a CC license, and also enter into a separate agreement that would allow a publisher to sell it.

It is common for an author to sign a publication agreement with a publisher that may grant additional rights to the publisher independent of a CC license. And if an author agrees to a particular set of separate permissions for the publisher, then the publisher could offer the author’s article on those terms–for example, the ability to sell access to a work–even if the work was originally made available under a noncommercial open license. The authors of the article in question may have signed an agreement like this when the article was originally accepted for publication with Wiley. If this is the case, then Wiley would likely have been able to transfer or sell those rights to Elsevier when Elsevier acquired the article. However, there is no way to know for sure that this is what happened without seeing the publication agreement the authors signed with the publisher.

The question really boils down to: Who owns the copyright to the article? And did the copyright holder grant permission to Elsevier for commercial use?

According to the copyright notice in the article, the copyright belongs to the authors. Mounce contacted the lead author earlier this week. The author said he was not aware that Elsevier was selling the article, and had not granted Elsevier permission to do so. If Elsevier was relying solely on the BY-NC-ND license for its use of the article, it seems likely that their action would have violated the noncommercial restriction by charging for access to the work on the Elsevier site.

Elsevier’s own policies raise one additional question. For the majority of articles they publish, Elsevier retains “the exclusive right to publish and distribute an article, and to grant rights to others, including for commercial purposes.” But their copyright terms state that for open access articles, “Elsevier will apply the relevant third party user license where Elsevier publishes the article on its online platforms.” Since the Wiley article came to Elsevier already as “open access” (let’s set aside for a moment the fact that many do not consider BY-NC-ND to qualify as “open access”), you would think that Elsevier would retain the existing CC license from Wiley. Therefore, Elsevier would not be in a position to charge for access to the article because of the noncommercial condition in the CC license. But it’s not clear whether Elsevier applies this reasoning to articles they acquire versus articles originally published on their platform.

So where does all this leave us in understanding what is going on with how these sorts of publishing agreements intersect with open licenses? There still seems to be some outstanding questions that perhaps Elsevier could help answer. Elsevier should share publicly its author’s publishing agreement so that prospective authors and the public can better understand the terms of Elsevier’s license (and as Mounce suggests, publishers should “print the terms and conditions of the author-publisher contract within each publication itself…”). In addition, Elsevier should clarify its copyright policy with regard to when they hold an exclusive right to publish and distribute and when they will adhere to the open license provided with an article.

Today the Ford Foundation announced an open licensing policy for all of their grant-funded projects and research. The new arrangement came into effect February 1, 2015 and covers most grant-funded work, as well as the outputs of consultants. The Ford Foundation has chosen to adopt the CC BY 4.0 license as the default for these materials. Grant agreements will now include a paragraph requiring the grant recipient to broadly share all copyrightable products (such as research reports, photographs, videos, etc.) funded by the grant under CC BY. And the Ford Foundation is leading by example by adopting CC BY for all materials not subject to third-party ownership on their own website.

Darren Walker, president of the Ford Foundation, said, “This policy change will help grantees and the public more easily connect with us and build upon our work, ensure our grant dollars go further and are more impactful, and – most importantly – increase our ability to advance social justice worldwide.”

“We’re incredibly pleased to see the Ford Foundation adopting a Creative Commons licensing policy for a wide range of grant-funded works, promoting openness and re-use of content produced through its philanthropic grantmaking,” said Ryan Merkley, CEO of Creative Commons. “The Ford Foundation joins a growing movement of foundations and governments adopting policies that increase access to and re-use of digital education materials, research articles, and data using Creative Commons.”

The Ford Foundation is an independent, nonprofit grant-making organization created in 1936. Its mission is “to strengthen democratic values, reduce poverty and injustice, promote international cooperation, and advance human achievement.” In 2013 the Ford Foundation granted almost $570,000,000 to projects and organizations around the world.

The Ford Foundation joins several other philanthropic grantmaking organizations who have adopted Creative Commons licensing policies for the outputs of their charitable giving. We’ve highlighted several over the last few months, including the William and Flora Hewlett Foundation (who also now require CC BY for all their project-based grantmaking) and the Bill & Melinda Gates Foundation (who adopted a CC BY open access policy for published grant-funded research and data). Releasing grant-funded content under permissive open licenses like CC BY means that these materials can be more easily shared and re-used by the public. And they can be combined with other resources that are also published under an open license.

Congratulations to the Ford Foundation on adopting an open licensing policy that will encourage the sharing of rich content and data in the digital global commons. Creative Commons continues to urge other foundations and funding bodies to emulate the ongoing leadership of the Ford Foundation by making open licensing an essential component of their grantmaking strategy.

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic is about supporting fair use, a legal doctrine in the United States and a few other countries that permits some uses of copyrighted works without the author’s permission for purposes such as parody, criticism, teaching, and news reporting. Fair use is an important check on the exclusive bundle of rights granted to authors under copyright law. Fair use is considered a “limitation and exception” to copyright.

One area of particular importance within limitations and exceptions to copyright is the practice of text and data mining. Text and data mining typically consists of computers analyzing huge amounts of text or data, and has the potential to unlock huge swaths of interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel scholarly discoveries and critical scientific breakthroughs. Because of this, text and data mining is increasingly important for scholarly research.

Recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from copyright. And as the European Commission conducts their review of EU copyright rules, some groups have called for the addition of a specific text and data mining exception. Copyright for Creativity’s manifesto, released Monday, urges the European Commission to add a new exception for text and data mining, in order to support new uses of technology and user needs.

Another view holds that text and data mining activities should be considered outside the purview of copyright altogether. The response from the Communia Association to the EU copyright consultation takes this approach, saying “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”

Whether text and data mining falls under a copyright exception or outside the scope of copyright, it is clearly an activity that should not be able to be controlled by the copyright owner. But unfortunately, that is exactly what some incumbent publishing gatekeepers are trying to do by setting up restrictive contractual agreements. One example we’ve seen of this practice is with the deployment of a set of “open access” licenses from the International Association of Scientific, Technical & Medical Publishers (STM), many of which attempt to restrict text and data mining of the licensed publications. In jurisdictions such as the United States, users do not need to ask permission (or be granted permission through a license) to conduct text and data mining because the activity either falls outside of the scope of copyright or is squarely covered by fair use.

Ensuring that licenses give copyright owners no more control over their content than they have under copyright law is a fundamental principle of CC licensing. That’s why the licenses explicitly state that they in no way restrict uses that are under a limitation or exception to copyright. This means that users do not have to comply with the license for uses of the material permitted by an applicable limitation or exception (such as fair use) or uses that are otherwise unrestricted by copyright law, such as text and data mining in many jurisdictions.

Today’s topic of fair use rights reminds us that “for copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.” To liberate the massive potential for innovation made possible by existing and future types of text and data mining, we need user-focused copyright policy that enables these new activities.

Last year, the U.S. Congress included a provision in its appropriations legislation that would ensure that some research conducted through federal spending would be made accessible online, for free. It mandated that a subset of federal agencies with research budgets of at least $100 million per year would be required provide the public with free online access to scholarly articles generated with federal funds no later than 12 months after publication in a peer-reviewed journal. The agencies affected by the public access provision of the appropriations bill included the Department of Labor, Department of Education, and Department of Health and Human Services. Of particular note is the Department of Health and Human Services, which encompasses research-intensive agencies such as the National Institutes of Health, Food and Drug Administration, and Centers for Disease Control and Prevention.

SEC. 525. Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for— 1) the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author’s final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government; (2) free online public access to such final peer reviewed manuscripts or published versions not later than 12 months after the official date of publication.

Alongside the federal spending legislation, there were references included in accompanying reports (see Departments of Commerce, Justice, Science report at p. 30 and Department of Interior report at p. 32) that point to President Obama’s Directive requiring agencies to increase access to the results of federally funded scientific research. The appropriations language passed for 2014 and 2015 echoes the language of the White House Directive, issued in February 2013. It directs “Federal agencies with more than $100M in R&D expenditures to develop plans to make the published results of federally funded research freely available to the public within one year of publication and requiring researchers to better account for and manage the digital data resulting from federally funded scientific research.” The agency plans were due in August 2013, and according to the Office of Science and Technology Policy (OSTP), all agencies have submitted at least a draft plan (PDF). Those plans are now being reviewed by OSTP.

Progress has been slow, but public access to publicly funded research remains on the table in the United States.

Today Open Knowledge and the Open Definition Advisory Council announced the release of version 2.0 of the Open Definition. The Definition “sets out principles that define openness in relation to data and content,” and is the baseline from which various public licenses are measured. Any content released under an Open Definition-conformant license means that anyone can “freely access, use, modify, and share that content, for any purpose, subject, at most, to requirements that preserve provenance and openness.” The CC BY and CC BY-SA 4.0 licenses are conformant with the Open Definition, as are all previous versions of these licenses (1.0 – 3.0, including jurisdiction ports). The CC0 Public Domain Dedication is also aligned with the Open Definition.

The Open Definition is an important standard that communicates the fundamental legal conditions that make content and data open. One of the most notable updates to version 2.0 is that it separates and clarifies the requirements under which an individual work will be considered open from the conditions under which a license will be considered conformant with the Definition.

Public sector bodies, GLAM institutions, and open data initiatives around the world are looking for recommendation and advice on the best licenses for their policies and projects. It’s helpful to be able to point policymakers and data publishers to a neutral, community-supported definition with a list of approved licenses for sharing content and data (and of course, we think that CC BY, CC BY-SA, and CC0 are some of the best, especially for publicly funded materials). And while we still see that some governments and other institutions are attempting to create their own custom licenses, hopefully the Open Definition 2.0 will help guide these groups into understanding of the benefits to using an existing OD-compliant license. The more that content and data providers use one of these licenses, the more they’ll add to a huge pool of legally reusable and interoperable content for anyone to use and repurpose.

To the extent that new licenses continue to be developed, the Open Definition Advisory Council has been honing a process to assist in evaluating whether licenses meet the Open Definition. Version 2.0 continues to urge potential license stewards to think carefully before attempting to develop their own license, and requires that they understand the common conditions and restrictions that should (or should not) be contained in a new license in order to promote interoperability with existing licenses.

Open Definition version 2.0 was collaboratively and transparently developed with input from experts involved in open access, open culture, open data, open education, open government, open source and wiki communities. Congratulations to Open Knowledge and the Open Definition Advisory Council on this important improvement.

Last week the William and Flora Hewlett Foundation announced that it is extending its open licensing policy to require that all content (such as reports, videos, white papers) resulting from project grant funds be licensed under the most recent Creative Commons Attribution (CC BY) license. From the Foundation’s blog post: “We’re making this change because we believe that this kind of broad, open, and free sharing of ideas benefits not just the Hewlett Foundation, but also our grantees, and most important, the people their work is intended to help.” The change is explained in more detail on the foundation’s website.

The foundation had a long-standing policy requiring that recipients of its Open Educational Resources grants license the outputs of those grants; this was instrumental in the creation and growth of the OER field, which continues to flourish and spread. Earlier this year, the license requirement was extended to all Education Program grants, and as restated, the policy will now be rolled out to all project-based grants under any foundation program. The policy is straightforward: it requires that content produced pursuant to a grant be made easily available to the public, on the grantee’s website or otherwise, under the CC BY 4.0 license — unless there is some good reason to use a different license.

“When we began thinking about extending the policy from OER grants to the foundation as a whole, we wanted to be sure we would not be creating unforeseen problems,” said Elizabeth Peters, the general counsel of the Hewlett Foundation. “So we first broadened it to cover education grants that were not for OER — and have been pleased to find that there were very few issues, and those few easily resolved. CC BY for all grant-funded works will now be the default, but we are willing to accommodate grantees who have a persuasive reason to take a different path. The ultimate goal of this policy is to make the content we fund more openly available to everyone. We’re only just beginning to implement this change, and will continue to monitor how it’s working, but so far we have found most grantees are ready and willing to apply the license that makes their works fully open for re-use of all kinds.”

In practice, the new policy means that nearly all of the extensive content produced with Hewlett project-based grant funds–not only works specifically commissioned as Open Educational Resources, but scholarly research, multimedia materials, videos, white papers, and more, created by grantees on subjects of critical importance–will be widely available for downstream re-use with only the condition that the creator is attributed. Text will be openly available for translation into foreign languages, and high-quality photographs and videos will be able to be re-used on platforms such as Wikipedia. Releasing grant funded content under permissive open licenses like CC BY means that these materials can be more easily shared and re-used by the public. And they can be combined with other resources that are also published under an open license: this collection grows larger every day as governments and other publicly-facing institutions adopt open policies. Promoting this type of sharing can benefit both the original creator and the foundation, as it enables novel uses in situations not intended by the original grant funding.

For a long time Creative Commons has been interested in promoting open licensing policies within philanthropic grantmaking. We received a grant from the Hewlett Foundation to survey the licensing policies of private foundations, and to work toward increasing the free availability of foundation-supported works. We wrote about the progress of the project in March, and we’ve been maintaining a list of foundation IP policies, and a model IP policy.

We urge other foundations and funding bodies to emulate the outstanding leadership demonstrated by the William and Flora Hewlett Foundation and commit to making open licensing an essential component of their grantmaking strategy.

Creative Commons and the Open Policy Network are pleased to announce the first round of fellows for the Institute for Open Leadership. The Institute is a training program to develop new leaders in education, science, public policy, and other fields on the values and implementation of openness in licensing, policies, and practices. We received over 90 applications from around the world and representing a broad diversity of fields. Here are the fellows for this year.

The in-person portion of the Institute will take place in San Francisco, California in January 2015. The fellows will be develop, refine, and work to implement a capstone open policy project. The point of this project is for the fellow to transform the concepts learned at the Institute into a practical, actionable, and sustainable initiative within her/his institution.

The keys to an elegant set of open licenses are simplicity and interoperability. CC licenses are widely recognized as the standard in the open access publishing community, but a major trade association recently published a new set of licenses and is urging its members to adopt it. We believe that the new licenses could introduce unnecessary complexity and friction, ultimately hurting the open access community far more than they’d help.

Today, Creative Commons and 57 organizations from around the world released a joint letter asking the International Association of Scientific, Technical & Medical Publishers to withdraw its model “open access” licenses. The association ostensibly created the licenses to promote the sharing of research in the scientific, technical, and medical communities. But these licenses are confusing, redundant, and incompatible with open access content published under other public licenses. Instead of developing another set of licenses, the signatories urge the STM Association to recommend to its authors existing solutions that will truly promote STM’s stated mission to “ensure that the benefits of scholarly research are reliably and broadly available.” From the letter:

We share a positive vision of enabling the flow of knowledge for the good of all. A vision that encompasses a world in which downstream communicators and curators can use research content in new ways, including creating translations, visualizations, and adaptations for diverse audiences. There is much work to do but the Creative Commons licenses already provide legal tools that are easy to understand, fit for the digital age, machine readable and consistently applied across content platforms.

So, what’s really wrong with the STM licenses? First, and most fundamentally, it is difficult to determine what each license and supplementary license is intended to do and how STM expects them each to be used. The Twelve Points to Make Open Access Licensing Work document attempts to explain its goals, but it is not at all clear how the various legal tools work to meet those objectives.

Second, none of the STM licenses comply with the Open Definition, as they all restrict commercial uses and derivatives to a significant extent. And they ignore the long-running benchmark for Open Access publishing: CC BY. CC BY is used by a majority of Open Access publishers, and is recommended as the optimal license for the publication, distribution, and reuse of scholarly work by the Budapest Open Access Initiative.

Third, the license terms and conditions introduce confusion and uncertainty into the world of open access publishing, a community in which the terminology and concepts utilized in CC’s standardized licenses are fairly well accepted and understood.

Fourth, the STM licenses claim to grant permission to do many things that re-users do not need permission to do, such as describing or linking to the licensed work. In addition, it’s questionable for STM to assume that text and data mining can be regulated by their licenses. Under the Creative Commons 4.0 licenses, a licensor grants the public permission to exercise rights under copyright, neighboring rights, and similar rights closely related to copyright (such as sui generis database rights). And the CC license only applies when at least one of these rights held by the licensor applies to the use made by the licensee. This is important because in some countries, text and data mining are activities covered by an exception or limitation to copyright (such as fair use in the United States), so no permission is needed. Most recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from the reach of copyright.

Finally, STM’s “supplementary” licenses, which are intended for use with existing licenses, would only work with CC’s most restrictive license, Attribution-NonCommercial-NoDerivatives (BY-NC-ND). Even then they would have very limited legal effect, since much of what they claim to cover is already permitted by all CC licenses. As a practical matter, these license terms are likely to be very confusing to re-users when used in conjunction with a CC license.

The Creative Commons licenses are the demonstrated global standard for open access publishing. They’re used reliably by open access publishers around the world for sharing hundreds of thousands of research articles. Scholarly publishing presents a massive potential to increase our understanding of science. And creativity always builds on the past, whether it be a musician incorporating samples into a new composition or a cancer researcher re-using data from past experiments in their current work.

But to fully realize innovations in science, technology, and medicine, we need clear, universal legal terms so that a researcher can incorporate information from a variety of sources easily and effectively. The research community can enable these flows of information and promote discoveries by sharing writings, data, and analyses in the public commons. We’ve already built the legal tools to support content sharing. Let’s use them and not reinvent the wheel.

Today the European Commission released licensing recommendations to support the reuse of public sector information in Europe. In addition to providing guidance on baseline license principles for public sector content and data, the guidelines suggest that Member States should adopt standardized open licenses – such as Creative Commons licenses:

Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions.

The Commission’s recommendations warn against the the development of customized licenses, which could break interoperability of public sector information across the EU. The guidelines clearly state that license conditions should be standardized and contain minimal requirements (such as attribution-only).

In order to proactively promote the re-use of the licenced material, it is advisable that the licensor grants worldwide (to the extent allowed under national law), perpetual, royalty-free, irrevocable (to the extent allowed under national law) and non-exclusive rights to use the information covered by the licence… it is advisable that [licenses] cover attribution requirements only, as any other obligations may limit licensees’ creativity or economic activity, thereby affecting the re-use potential of the documents in question.

This is a welcome outcome that will hopefully provide a clear path for data providers and re-users. It’s great to see this endorsement after our efforts alongside our affiliate network to advocate for clear best practices in sharing of content and data. The recommendation benefits from CC’s free international 4.0 licenses, saving governments time and money, and maximizing compatibility and reuse.

Earlier this week, we kicked off the Open Policy Network. We announced that the first project within the Network is the Institute for Open Leadership. The Institute for Open Leadership is a training program to develop new leaders in education, science, public policy, and other fields on the values and implementation of openness in licensing, policies, and practices. The Institute is looking for passionate public- and private-sector professionals interested in learning more about openness and wish to develop and implement an open policy in their field.

Interested applicants should review the application information and submit an application by June 30, 2014. We plan to invite about 15 fellows to participate in the first round of the Institute for Open Leadership. The in-person portion of the Institute will be held in the San Francisco bay area in January 2015 (TBD: either January 12-16 or January 19-23). Applications are open to individuals anywhere in the world.

A central part of the Institute will require fellows to develop and implement a capstone open policy project. The point of this project is for the fellow to transform the concepts learned at the Institute into a practical, actionable, and sustainable initiative within her/his institution. Open policy projects can take a variety of forms depending on the interests of the fellow and the field where the project will be implemented.